Matter of Bracker v City of New York

[*1] Matter of Bracker v City of New York 2008 NY Slip Op 50411(U) [18 Misc 3d 1142(A)] Decided on March 5, 2008 Supreme Court, Kings County Miller, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 5, 2008
Supreme Court, Kings County

In the Matter of the Claim on behalf of Deborah Bracker, Individually and as Mother and Natural Guardian of MATTHEW BRACKER, an infant. Claimant(s)

against

The City of New York and NEW YORK CITY BOARD OF EDUCATION, Respondents.



41906/07



Petitioners are represented by Raphaelson Law Firm, P.C., by Dario A. Martinez,

Esq., of counsel.

Respondents are represented by Michael A. Cardozo, Esq., Corporation Counsel of the

City of New York, by Harry P. Panagos, Esq., of counsel.

Robert J. Miller, J.

Upon the foregoing papers, petitioner Deborah Bracker, as natural guardian of Matthew Bracker, moves by Order to Show Cause dated November 30, 2007, pursuant to General Municipal Law ("GML") § 50-e, for an order granting her leave to file a late Notice of Claim against the City of New York and the New York City Board of Education (collectively "the City").

The instant matter arises out of a slip and fall by the student Matthew Bracker in the school cafeteria at P.S. 155 on February 5, 2007.

During oral argument counsel for petitioner indicated that petitioner's mother contacted the law office sometime within the month of February, 2007. The student at the time of the incident was eleven (11) years old.

In support of the motion to serve a late Notice of Claim against the City, petitioner maintains that there was a reasonable excuse for failing to file a timely Notice of Claim and that the City had [*2]actual notice of the accident within the 90 days under the GML. The Court disagrees and denies the application.

A court in its discretion may extend the time under GML § 50-e, to serve a Notice of Claim. In exercising its discretion, the court must focus on whether the movant has demonstrated a reasonable excuse for its failure to file a timely notice of claim, whether the municipality acquired

actual knowledge of the essential facts constituting the claim within 90 days from its accrual or a reasonable time thereafter, and whether the delay would substantially prejudice the municipality in maintaining its defense on the merits. (Rabanar v City of Yonkers, 290 AD2d 428 [ 2nd Dept. 2002], Christoforatos v City of New York, 285 AD2d 622 [2nd Dept 2001], Hobgood v New York City Housing Authority, 253 AD2d 555 [2nd Dept. 1998].)

In the first instance, petitioner fails to offer a valid and acceptable excuse for the nine-month delay in filing a Notice of Claim. Significantly, petitioner asserts that "due to the claimant's age and inability to remember the details, before, during and after the accident, our office never filed a Notice of Claim upon the City of New York." Here, the child injured was eleven years old, seemingly old enough to recall and describe the accident, however, no other factors were demonstrated to the Court as to why the child did not remember any details of the incident. Infancy of the petitioner alone does not compel the Court to grant the application for a late Notice of Claim. (Matter of Knightner v City of New York, 29 AD2d 533 [2d Dept 1994], Rennel S. v N. Junior High Sch., 12 AD3rd 518 [2nd Dept 2004].) Further, it is incumbent on the movant to demonstrate a nexus between the delay in serving the Notice of Claim and the infancy. (Brown v County of Westchester, 293 AD2d 748 [2nd Dept 2002].)

Infancy cannot be asserted as a reasonable excuse when counsel is retained within the 90-day statutory period under GML § 50-e. (Matter of Belvelyn Perez v City of NewYork, 250 AD2d 688 [2nd Dept 1998], Matter of D'Andrea v City of Glen Cove Public Schools, 143 AD2d 747 [2nd

Dept.1988].) Here, counsel indicated during oral argument that the infant's mother contacted the law office within the same month, February 2007, of the accident.

Petitioner argues that the incident report prepared by the school, P.S. 155, memorializes the accident therefore giving actual notice to the City within the 90-day period allowed under GML 50-e. Here, the City did not acquire actual knowledge from the incident report filed by P.S. 155 as it does not contain any essential facts relating to or constituting the claim. (Matter of Felice v Eastport/South Manor Cent. School District, 2008 NY Slip Op 00691 [2nd Dept 1/29/08].)

In a second instance of asserting an excuse for substantial delay in filing a late Notice

of Claim, counsel for petitioner asserts that "the office immediately investigated the circumstances surrounding this event and was unsuccessful in obtaining witness statements."

The difficulty in obtaining and investigating the circumstances surrounding the accident amounts to law office failure, as no facts were asserted to the Court as to what, if any, obstruction or barriers prevented the investigation of potential witnesses, this in conjunction with the City not receiving actual knowledge of the facts underlying the claim, cannot be proffered as a reasonable excuse. ( [*3]Matter of Felice v Eastport/South Manor Cent. School District, 2008 NY Slip Op 00691 [2nd Dept 1/29/08], Matter of O'Mara v Town of Courtland, 210 AD2nd 337 [2nd Dept 1994]).

Accordingly, the application to serve a late Notice of Claim is denied.

This constitutes the decision and order of the Court.

E N T E R :

_________________________________

ROBERT J. MILLER

Justice